Vailagilala v Minister of Immigration
[2021] NZHC 1310
•4 June 2021
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2021-404-507
[2021] NZHC 1310
UNDER the Immigration Act 2009 IN THE MATTER
of an application for leave to appeal a decision of the Immigration and Protection Tribunal
BETWEEN
ESAU VAILAGILALA
Applicant
AND
MINISTER OF IMMIGRATION
Respondent
Hearing: 2 June 2021 Appearances:
C F Godinet for the Appellant
BCL Charmley and G Niven for the Respondent
Judgment:
4 June 2021
JUDGMENT OF GORDON J
This judgment was delivered by me on 4 June 2021 at 2 pm, pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
Solicitors: Crown Law, Wellington
CFL Godinet, Auckland
VAILAGILALA v MINISTER OF IMMIGRATION [2021] NZHC 1310 [4 June 2021]
Introduction
[1] The applicant, Esau Vailagilala, is liable for deportation under a deportation liability notice served on him on 1 November 2016. The notice was issued as a consequence of Mr Vailagilala’s conviction for murder on 8 March 2013 for offending that occurred on 14 October 2011, which was within two years after Mr Vailagilala first held a New Zealand residence class visa.1 On 30 April 2013, Mr Vailagilala was sentenced to life imprisonment with a minimum period of imprisonment of thirteen and a half years. The minimum period will expire in January 2026. At that time, Mr Vailagilala will be liable to be deported to Samoa.
[2] Mr Vailagilala appealed his liability for deportation to the Immigration and Protection Tribunal (Tribunal) on humanitarian grounds. Although the Tribunal found there were exceptional circumstances of a humanitarian nature, balancing those against the very serious crime Mr Vailagilala committed, the Tribunal held it would be neither unjust nor unduly harsh for him to be deported.2
[3] Mr Vailagilala now applies to this Court for leave to appeal the Tribunal decision under s 245 of the Immigration Act 2009 (the Act) which empowers this Court to grant leave to appeal a decision of the Tribunal on a question of law. The Minister of Immigration (Minister) opposes the application.
Decision of the Tribunal
[4] Before the Tribunal, Mr Vailagilala submitted that there were exceptional humanitarian circumstances arising out of his connections to New Zealand through his family that would make it unjust or unduly harsh for him to be deported from New Zealand.
[5] Specifically, Mr Vailagilala’s case was that his family members live in New Zealand. His birth parents, four siblings, his brothers’ partners and children, an uncle and aunt on his father’s side and an uncle and two aunts on his mother’s side, and
1 Immigration Act 2009, s 161.
2 Vailagilala v Minister of Immigration [2021] NZIPT 600380 (Tribunal decision).
many cousins live in New Zealand. Mr Vailagilala’s only family in Samoa (where he lived until he was 17 years old) are his aunt and grandmother.
[6] Mr Vailagilala said deportation would break his bonds and end his fellowship with his siblings. He said he wanted to remain in New Zealand with his family where he can support his family and have a better future.
[7] Further, Mr Vailagilala submitted there were other exceptional humanitarian circumstances that would make it unjust and unduly harsh for him to be deported, including:
(a)He would be living in a country where he has no financial support. He would be isolated from his family. By the time of his release from prison he would not have lived in Samoa for 17 years;
(b)If Mr Vailagilala’s birth parents are deported to Samoa (they have been unlawfully in New Zealand since 22 December 2007) he would be unable to financially support them; and
(c)Samoa does not offer rehabilitation facilities for Mr Vailagilala.
[8] On the final limb of the statutory test, Mr Valagilala submitted it would not be contrary to the public interest for him to remain in New Zealand.
[9] The Minister submitted that Mr Vailagilala’s circumstances, considered alone or cumulatively, were not exceptional circumstances of a humanitarian nature. Nor would deportation be unjust or unduly harsh. Any exceptional circumstances of a humanitarian nature needed to be balanced against Mr Vailagilala’s offence, which the sentencing Judge described as a “very savage attack”.3 The Minister also submitted that Mr Vailagilala had not established that it would be contrary to the public interest for him to remain in New Zealand.
3 R v Uhrle HC AK [2013] NZHC 922 at [11].
[10] The Tribunal’s conclusion on exceptional circumstances of a humanitarian nature was:4
[75] Taking into account the appellant’s likely difficulties in readjustment to any society when released from a long prison sentence, the presence of most (if not all) of his immediate family in New Zealand, the limited family support available in Samoa, his close relationship with his twin brother in New Zealand and the obligations of New Zealand in respect of the rights to family (such as under the ICCPR), the Tribunal is satisfied that there are exceptional circumstances of a humanitarian nature in the appellant’s case.
[11] However the Tribunal found that departure from New Zealand would not be unjust or unduly harsh.5 The reasons were:
(a)The seriousness of Mr Vailagilala’s charge of murder, committed within the first two years he was in New Zealand, outweighed his exceptional humanitarian circumstances;6
(b)Mr Vailagilala had been physically separated from his family since he was imprisoned in 2013;7
(c)Mr Vailagilala grew up in Samoa for the first 17 years of his life;8
(d)For most of the time Mr Vailagilala has spent in New Zealand, he has been imprisoned;9 and
(e)As his birth parents are unlawfully in New Zealand, if they are deported, they could provide emotional support to Mr Vailagilala.10
[12]The Tribunal concluded:11
[82] Weighing the seriousness of the appellant’s offending (murder) against the exceptional humanitarian circumstances (likely separation from most, if not all, of his immediate family in New Zealand, if deported to
4 Vailagilala v Minister of Immigration, above n 2.
5 At [4].
6 At [79].
7 At [81].
8 At [69].
9 At [74].
10 At [71].
11 Vailagilala v Minister of Immigration, above n 2
Samoa), the Tribunal is satisfied that it is not unjust or unduly harsh for the appellant to be deported from New Zealand.
[13] Having found that it was not unjust or unduly harsh for Mr Vailagilala to be deported from New Zealand, the Tribunal considered it was unnecessary to consider the public interest stage of the inquiry under the statutory test.
Proposed grounds of appeal and opposition
[14] Mr Godinet, for Mr Vailagilala, submits the Tribunal erred in law when, having found that there were “exceptional circumstances of a humanitarian nature”, it then decided that it was not unjust or unduly harsh to deport Mr Vailagilala from New Zealand on the following grounds (as set out in the amended notice of application):
(a)The Tribunal failed to have consideration and proper regard to the fact that Mr Vailagilala, whilst serving his sentence of thirteen and half years of imprisonment, to date has not received rehabilitative intervention treatment and for the balance of the term of sentence – to expire in 2026 – Mr Vailagilala will not receive or undergo rehabilitative treatment;
(b)The failure to provide Mr Vailagilala with rehabilitative intervention treatment means that he is prevented from receiving education towards his reintegration into society so as not to pose a risk to the safety of the community; and
(c)Mr Vailagilala’s ability to reintegrate into the community is caused and impeded by this failure.
[15] In support of the proposed grounds of appeal Mr Godinet relies on a report dated 7 January 2021 of a registered clinical psychologist, Greg Woodcock, who gave evidence on behalf of Mr Vailagilala at the Tribunal. In brief, Mr Woodcock gave evidence on Mr Vailagilala’s risk of reoffending and his relationships with his family. He also “encouraged” the prison service to waitlist Mr Vailagilala for the “Saili Matagi” programme, which is a rehabilitative programme offered by the New Zealand
Department of Corrections to Pasifika prisoners who are serving a sentence for a serious or violent offence.
[16] Mr Vailagilala says that the questions of law by reason of their general or public importance ought to be considered by this Court. He also says the “any other reason” part of the statutory test is engaged because of the failure of the Department of Corrections to provide rehabilitative intervention treatment.
[17] The response of the Minister in summary is that this Court ought not grant leave to appeal because: no seriously arguable question of law is identified; the material put forward by Mr Vailagilala on rehabilitation was considered by the Tribunal; and any complaint about the extent of consideration is a matter of weight that could not amount to an error of law. The threshold for an error of law that justifies leave is not met as the Tribunal applied the correct and well-settled test for humanitarian appeals.
Submissions
Applicant’s submissions
[18] Mr Godinet submits that the Tribunal failed to consider and have proper regard to the lack of rehabilitative intervention treatment for Mr Vailagilala during his period of imprisonment. Mr Godinet says that treatment would assist in Mr Vailagilala’s reintegration into society and would lower Mr Vailagilala’s risk to the community.
[19] Mr Godinet submits the release of Mr Vailagilala into the Samoan community without rehabilitative intervention treatment after thirteen and a half years imprisonment demonstrates a lack of care and a breach of duty of care to Mr Vailagilala, the New Zealand public and the Samoan public. In support of that submission, Mr Godinet refers to Mr Woodcock’s report where Mr Woodcock said: “It is unconscionable to release Mr Vailagilala into the Samoan or New Zealand communities without him undergoing such intervention”.
[20] He submits Mr Vailagilala’s situation is analogous to the “homegrown” issue in Helu v Immigration and Protection Tribunal, where Elias CJ characterised the appellant’s offending as “home grown”.12
[21] Mr Godinet submits that for the Tribunal to find it was not unjust or unduly harsh to deport Mr Vailagilala without proper consideration and due regard to this issue is an error of law because the Tribunal found exceptional circumstances of a humanitarian nature existed on the facts.
[22] Mr Godinet notes that having determined it was not unjust or unduly harsh for Mr Vailagilala to be deported, that removed the need for the Tribunal to consider the “public interest” stage of the inquiry under the statutory test. He nevertheless goes on to submit that a failure to provide rehabilitative intervention treatment to enable integration into the community is relevant to both the “unjust and unduly harsh” limb of the test (s 207(1)(a)) and whether the offender’s remaining in New Zealand is contrary to the public interest (s 207(1)(b)). For both of these limbs, the Tribunal is required to make an overall judgment of the circumstances.13 By not giving proper consideration to the failure to provide rehabilitative treatment, the Tribunal did not consider all matters relevant to an overall judgment.
Respondent’s submissions
[23] Mr Niven, for the Minister, submits the Court should not grant leave to appeal. He says first, if Mr Vailagilala’s complaint is an alleged failure by the Tribunal to consider the availability or non-availability of rehabilitation since Mr Vailagilala was imprisoned, the material put forward by Mr Vailagilala was considered by the Tribunal. Therefore, there was no arguable error of law.
[24] If the complaint is that there was an insufficient consideration by the Tribunal as to the availability or non-availability of such a programme, that is a matter of weight, which in this case, does not amount to an error of law.
12 Helu v Immigration and Protection Tribunal [2015] NZSC 28, [2016] 1 NZLR 298 at [169]–[170].
13 At [169]–[170].
[25] In response to Mr Godinet’s reliance on Helu, Mr Niven submits the part of the judgment relied on relates to the public interest test in s 207(1)(b).14 This was an issue not reached by the Tribunal as it concluded deportation would not be unjust or unduly harsh. In other words the Tribunal was not satisfied s 207(1)(a) was made out. In any event, the offending was not “homegrown” in the sense used in Helu. Mr Vailagilala came to New Zealand in December 2009 aged 17 years and the offending occurred in October 2011. In Helu, the appellant had been in New Zealand since early childhood.
[26] Mr Niven submits the Tribunal applied the correct and well-settled test for humanitarian appeals and therefore, the threshold for error of law that justifies leave is not met. In particular, the assessment of the “unjust or unduly harsh” limb must be made in the light of the reason the person is liable for deportation, which in this case is serious offending. The Tribunal applied that test.15
[27] In response to Mr Godinet’s submission that the threshold for leave is met because Mr Vailagilala has not yet received and is unlikely to receive rehabilitative treatment, Mr Niven says that claim misunderstands the leave test, which must relate to the Tribunal’s consideration of the issue, not the rehabilitation availability itself. Any complaint about the extent of rehabilitative opportunities in prison is not an issue of law that establishes an arguable error of law in the Tribunal’s decision.
[28] Mr Niven submits even if Mr Godinet were to reframe the claimed legal error referred to in [27] above to meet the legal test, a failure to consider the availability of rehabilitation (such failure is denied) would not be an issue of general or public importance because it does not go beyond the particular circumstances of Mr Vailagilala.16 Nor would it have been likely to alter the weighing exercise required by s 207(1)(a), particularly in light of the seriousness of Mr Vailagilala’s offending.
14 Helu v Immigration and Protection Tribunal, above n 12, at [167]–[170].
15 Vailagilala v Minister of Immigration, above n 2, at [76] citing Guo v Minister of Immigration
[2015] NZSC 132, [2016] 1 NZLR 248 at [9].
16 Singh v Chief Executive of the Ministry of Business, Innovation and Employment
[2018] NZHC 972, [2018] NZAR 1120 at [24]–[28].
[29] Mr Niven submits that this is not a case where any alleged errors meet the “any other reason” threshold in s 245(3) of the Act. It is not a case of individual injustice such that this Court could simply not countenance the Tribunal’s decision standing.17
Law
[30] There are two statutory provisions the Court must consider. First there is s 245 of the Act pursuant to which the Court may grant leave to appeal. It provides:
245 Appeal to High Court on point of law by leave
(1)Where any party to an appeal to, or matter before, the Tribunal (being either the person who appealed or applied to the Tribunal, an affected person, or the Minister, chief executive, or other person) is dissatisfied with any determination of the Tribunal in the proceedings as being erroneous in point of law, that party may, with the leave of the High Court (or, if the High Court refuses leave, with the leave of the Court of Appeal), appeal to the High Court on that question of law.
…
(2)In determining whether to grant leave to appeal under this section, the court to which the application for leave is made must have regard to whether the question of law involved in the appeal is one that by reason of its general or public importance or for any other reason ought to be submitted to the High Court for its decision.
(3)On the appeal, the High Court must determine the question or questions of law arising in the proceedings, and may then—
(a)confirm the decision in respect of which the appeal has been brought; or
(b)remit the matter to the Tribunal with the opinion of the High Court, together with any directions as to how the matter should be dealt with; or
(c)make such other orders in relation to the matter as it thinks fit.
[31]In deciding whether to grant leave under this section the Court must consider:18
(a)Whether there is a question of law;
17 Machida v Chief Executive of Immigration New Zealand [2016] NZCA 162, [2016] 3 NZLR 721 at [8].
18 Nabou v Minister of Immigration [2012] NZHC 3365, [2013] NZAR 155 at [8], citing Taafi v Minister of Immigration [2013] NZAR 1037 (HC) at [19].
(b)Whether the question of law is seriously arguable; and
(c)Whether the question of law is of sufficient importance to be submitted to the High Court, either:
(i)By reason of general or public importance; or
(ii)For any other reason (which requires an exceptional case involving injustice to such an extent the Court simply could not countenance the Tribunal’s decision standing).
[32] This Court has previously emphasised that the introduction of a leave requirement indicates a deliberate intention by Parliament to limit appeals and reviews of Tribunal decisions.19
[33] In assessing whether an issue is one of general or public importance or for any other reason should be submitted to the High Court, the question is similar to that which applies to second appeals. Upon a second appeal the Court is not engaged in a general correction of error.20
[34] If the application has little or no prospect of success, it follows that the issues are of limited general or public importance. This militates against leave.21
[35] Challenges to the weight which the Tribunal accords to aspects of the evidence before it will seldom amount to an error of law. As was said by Katz J in Nabou v Minister of Immigration:22
19 Singh v Chief Executive of the Ministry of Business, Innovation and Employment, above n 16, at
[26] citing Nabou v Minister of Immigration, above n 18, at [6]; SK v Immigration and Protection Tribunal [2014] NZHC 2693 at [5]; Guo v Immigration and Protection Tribunal [2014] NZHC 804 at [52]; and DO v Immigration and Protection Tribunal [2016] NZHC 3158 at [38].
20 Singh v Chief Executive of the Ministry of Business, Innovation and Employment, above n 16, citing Waller v Hider [1998] 1 NZLR 412 (CA) at [413].
21 Singh v Chief Executive of the Ministry of Business, Innovation and Employment, above n 16, citing Allada v Immigration and Protection Tribunal [2014] NZHC 953, [2014] NZAR 880 at [36]; and Rupal v Immigration and Protection Tribunal [2018] NZHC 422 at [33].
22 Nabou v Minister of Immigration, above n 16 at [9] cited in AB v Refugee and Protection Officer [2017] NZHC 1424 at [33]; and AH v Immigration and Protection Tribunal [2017] NZHC 1880 at [29]. See also Guo v Immigration and Protection Tribunal, above n 19, at [55], [79] and [105]; De Borja v Removal Review Authority [1999] NZAR 471 (HC) at 476; and Minister of Immigration v Zhang [2013] NZCA 487, [2014] NZAR 88 at [34], where Harrison J noted that “the weight to be given to particular factors was solely within the Tribunal’s statutory function”.
Value judgments made by the Tribunal in balancing and weighing the competing factors arising in any given case will seldom amount to an error of law.
[36] The second statutory provision is s 207 which sets out the test the Tribunal must consider in determining a humanitarian appeal:
207 Grounds for determining humanitarian appeal
(1)The Tribunal must allow an appeal against liability for deportation on humanitarian grounds only where it is satisfied that—
(a)there are exceptional circumstances of a humanitarian nature that would make it unjust or unduly harsh for the appellant to be deported from New Zealand; and
(b)it would not in all the circumstances be contrary to the public interest to allow the appellant to remain in New Zealand.
(2)In determining whether it would be unjust or unduly harsh to deport from New Zealand an appellant who became liable for deportation under section 161, and whether it would be contrary to the public interest to allow the appellant to remain in New Zealand, the Tribunal must have regard to any submissions of a victim made in accordance with section 208.
[37] In this case, the Court is concerned with the “unjust or unduly harsh” limb of the test. In Guo v Minister of Immigration,23 the Supreme Court discussed this expression as follows:24
… It has been held that the expression “unjust or unduly harsh” is composite in nature and that the Tribunal need not inquire separately as to whether deportation would be (a) unjust or (b) unduly harsh. Whether deportation would be “unjust or unduly harsh” is to be assessed in light of the reasons why the appellant is liable for deportation and involves a balancing of those considerations against the consequences for the appellant of deportation. The public interest is not immaterial to the application of s 207(1)(a) but is primarily relevant to the application of s 207(1)(b). In determining whether deportation would be unjust or unduly harsh, the primary focus is on the personal circumstances of the person in respect of whom deportation is proposed and those of immediate family members who will be affected by that person’s deportation.
23 Guo v Minister of Immigration, above n 15.
24 At [9]
Discussion
Alleged failure to consider availability or non-availability of rehabilitation
[38] As Mr Niven notes, it was Mr Vailagilala’s responsibility to establish his case and to do so he needed to ensure all information, evidence and submissions he wished to be considered was before the Tribunal.25 Mr Vailagilala put forward the following matters:
(a)Mr Woodcock’s recommendation that the Saili Matagi programme be provided to Mr Vailagilala and that the Department of Corrections was unlikely to offer it; and
(b)Counsel’s submissions that there are no rehabilitative facilities in Samoa and Mr Vailagilala had not had any rehabilitation.
[39] On the first issue, the Tribunal did consider Mr Woodcock’s recommendation and evidence as follows:26
[54] Mr Woodcock states that the appellant would benefit from a rehabilitation programme …
[55] Mr Woodcock states that this programme is one of the few available in the Samoan language. However the Department of Corrections is unlikely to offer the programme to the appellant because it lacks resources and he is liable for deportation. …
[40] On the second matter, the Tribunal considered counsel’s submission that there was no rehabilitative intervention in Samoa and that Mr Vailagilala had no assistance since being in custody. The Tribunal said:27
[55] … No such programme is available in Samoa.
[56](d) There are no facilities in Samoa for rehabilitation of the appellant.
…
25 Section 226(1) of the Act.
26 Vailagilala v Minister of Immigration, above n 2.
27 Vailagilala v Minister of Immigration, above n 2.
[41] Then in the part of the decision where the Tribunal was making its assessment of whether there were exceptional circumstances of a humanitarian issue, the Tribunal engaged with this issue saying:28
[72] The Tribunal notes the submission of the appellant’s counsel that there are no facilities in Samoa for the appellant’s rehabilitation.
[42] In making its assessment under the “unjust or unduly harsh” limb of the test, the Tribunal weighed the exceptional circumstances of a humanitarian nature it found to exist, and which included the issue of rehabilitative programmes (as set out above) against the seriousness of the offending. In other words, the Tribunal did consider the issue of rehabilitative treatment under the “unjust or unduly harsh” limb of the test.
[43] As to the submission made to the Tribunal that Mr Vailagilala had not had rehabilitative assistance provided to him, as Mr Niven notes, Mr Woodcock’s report does not appear to support that submission. While Mr Woodcock stated that Mr Vailagilala had not participated in the particular programme Saili Matagi, his report does not purport to set out the treatment Mr Vailagilala had had, but only recommends this particular programme. The section of Mr Woodcock’s report headed “Sources of information” does not refer to information from the Department of Corrections on what rehabilitation had been either provided or offered to Mr Vailagilala. Additionally, the decision refers to Mr Vailagilala’s own evidence that, in prison, Mr Vailagilala had taken a variety of courses and that:29
… He has also attended classes in Samoan language and culture, which have helped him to know his background and to grow as a person.
[44] For the above reasons, Mr Vailagilala has not established that the Tribunal did not consider the availability of rehabilitation in determining that it would not be unjust or unduly harsh to deport Mr Vailagilala from New Zealand.
28 Vailagilala v Minister of Immigration, above n 2.
29 At [22].
Alleged insufficient consideration and weight given to availability of rehabilitative programmes
[45] In considering whether it would be unjust or unduly harsh to deport Mr Vailagilala, the Tribunal balanced his very serious offending against the exceptional circumstances of a humanitarian nature. In this context, the Tribunal considered the difficulties in readjusting to society that Mr Vailagilala would have after his long prison sentence. The Tribunal said:30
[80] The appellant’s offending must be weighed against his exceptional humanitarian circumstances. As identified above, these are that his difficult readjustment to society after his long prison sentence will be supported by his immediate family in New Zealand (and, in particular, his twin brother) whereas he has limited family support in Samoa.
(emphasis added)
[46]The Tribunal referred to the remarks of the sentencing Judge as follows:31
[33] … The fact of the matter is that this was a very serious crime and there was an element of premeditation. The offenders essentially went out looking for [the victim] for the purpose of attacking him, and that is what happened. So far as [the appellant was] concerned, you were evidently the first to commence the assault, which was the fatal one. Whatever the circumstances were when you got into the car, by the time you left it, it seems clear what you had in mind.
…
[35] … [I]t was a nasty, murderous assault and it was three on to one. It continued through and beyond a stage where [the victim] would have been totally unable to defend himself having been overwhelmed by serious force used against him.
[36] I would characterise the offending as very serious and in my view it justifies imposition of a minimum term of imprisonment of 15 years before taking into account any mitigating features.
…
[38] It is clear that what was to be the fatal assault was commenced by [the appellant] when he tackled [the victim] to the ground, and after that [two co- offenders] joined in. Given my acceptance of the Crown’s evidence at the trial that at least four weapons were used in the assault, I think it likely in the circumstances that each of you must have used one of the weapons. I do not accept [counsel’s] submission that [the evidence of a forensic witness] at the trial made it clear that [the appellant] could not have used a knife. Whether or
30 Vailagilala v Minister of Immigration, above n 2.
31 At [77].
not that is the case however, and which of you were armed or to what extent, I do not consider significant. The events would as they quickly unfolded not have allowed one person to wield all the weapons that were used. Given the events that were taking place at close quarters, each of you must have been aware that one or more of you was using a weapon, yet jointly continued in the assault. The fact that all of you participated in the attack, by any means, contributed to [the victim’s] inability to defend himself, even if one of you had not been armed. Consequently, in assessing the gravity of the offending, I would not distinguish among the three male offenders.
[47]The Tribunal then said:32
[79] When an appellant’s offending is minor in nature, it will be easier to establish that deportation would be unjust or unduly harsh against any humanitarian factors. However, where the appellant’s offending is particularly serious, even strong humanitarian circumstances may not result in deportation being unjust or unduly harsh. In the appellant’s case, murder is a very serious crime and his offending was a serious example of its type, which he committed within two years of his arrival in New Zealand.
[48] This challenge comes down to the weight the Tribunal accorded to part of the evidence. Mr Vailagilala does not make out any error of weight that could amount to an arguable error of law. To do so, Mr Vailagilala would need to point to an error of such significance, extent or nature that it renders the decision legally flawed.33 That is not the case here.
[49] As to Mr Godinet’s reliance on Helu, I accept Mr Niven’s submission that it is misplaced. The discussion in Helu referred to by Mr Godinet, that is the need to make an overall judgment of the circumstances, relates to the public interest test in s 207(1)(b). It was not necessary for the Tribunal to consider the public interest. Section 207(1)(a) was not satisfied.
[50] I also accept the submission Mr Niven makes that Mr Vailagilala’s circumstances are entirely different from those of the appellant in Helu who had been in New Zealand since early childhood. The offending in this case could not be said to be “home grown” in the sense used by Elias CJ and Glazebrook J in Helu because Mr Vailagilala grew up in Samoa.34
32 Vailagilala v Minister of Immigration, above n 2.
33 Singh v Chief Executive of the Ministry of Business, Innovation and Employment, above n 16, at
[28] citing Nabou v Minister of Immigration, above n 16.
34 At [12], [101] and [212].
Threshold for leave: error of law and general or public importance or any other reason
[51] It is not necessary to consider whether the availability of rehabilitation was a mandatory consideration for the Tribunal in its assessment of whether it would be unjust or unduly harsh for Mr Vailagilala to be deported from New Zealand. That is because the Tribunal did consider the issue. In doing so, it applied the correct statutory test. Therefore, there is no seriously arguable error of law.
[52] Regarding the alleged failure to have “proper regard” to the availability of rehabilitation, that is a matter of weight, as discussed above, which does not amount to an error of law.
[53] As the above two grounds raised by Mr Vailagilala have little or no prospect of success, the issues are of limited general or public importance.
[54] Mr Godinet also argues that the threshold for leave is met because Mr Vailagilala has not yet received and is not likely to receive rehabilitation treatment. Mr Godinet submits the consequences are grave and this is an error of law that ought to be submitted to this Court for decision. He says the question of law “for any other reason” in s 245(2) involves the issue of the Department of Corrections or Public Prison Service of New Zealand not providing rehabilitative intervention treatment while Mr Vailagilala is in prison.
[55] This claim does not amount to an error of law in respect of the decision sought to be appealed. Any alleged error must relate to the Tribunal’s consideration of an issue not whether rehabilitation is available or not.
[56] Any reframing of the issue to meet the legal test would result in an allegation that there was a failure to consider the availability of rehabilitation. I have already determined that the Tribunal did not err in this regard. It did consider this issue. Further, I accept Mr Niven’s submission that even if the Tribunal had made such an error it would not have been likely to alter the required weighing exercise having regard to the seriousness of Mr Vailagilala’s offending.
[57] Finally, this alleged error does not meet the threshold of “any other reason” in s 245(2) in respect of individual injustice. As was said by Kos J in Taafi v Minister of Immigration:35
… it would only be in exceptional circumstances, involving individual injustice to such an extent that the Court simply could not countenance the first instance decision standing, that this alternative requirement will be met.
[58] For the above reasons, the proposed appeal does not raise any question of law of general or public importance or which for any other reason ought to be submitted to the High Court.
Result
[59] The application for leave to appeal to this Court on questions of law is dismissed.
Costs
[60] The proceeding has previously been categorised as costs category 2. The Minister seeks costs. If the parties can agree costs, a joint memorandum is to be filed within 20 working days of the date of this judgment. If costs cannot be agreed, the Minister’s memorandum is to be filed and served within five working days of the date of the joint memorandum. Mr Vailagilala is to file and serve his memorandum within five working days of service of the Minister’s memorandum. Memoranda should not exceed four pages. I will determine costs on the papers.
Gordon J
35 Taafi v Minister of Immigration, above n 18, at [19].
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